7.2 Trespass to the Person, Land and Goods Lecture
Trespass to the Person
Tort law has developed its own framework for claims against defendants who have acted to infringe personal rights. This includes the torts of battery, assault, false imprisonment and harassment.
Battery simply involves the intentional and direct application of force to another person (either to their body or via their clothing). It is essential to note that it does not require injury or objective harm – an individual has a straightforward right to not be physically touched or moved by another person.
- The key feature of battery is intention – else every busy street would result in a litany of cases. The intention requirement be seen operating in Letang v Cooper  1 QB 232.
- Direct application of force is also a requirement of battery. This requirement should not be taken literally – a defendant can use a tool to inflict battery.
Indirect can still fulfil the ‘direct application’ requirement, Pursell v Horn  112 ER 966. Contact by a third party can also fulfil this requirement, given that the contract is instigated by the defendant. The key example here is Scott v Shepherd  96 ER 525.
The criminal law concept of transferred malice means that a defendant who intends direct with one party but instead hits another will be held liable for the with the ‘wrong’ victim. This can be seen in Livingstone v Ministry of Defence  NI 356.
Whilst injury is generally not a prerequisite, the courts will distinguish between hostile and unhostile . As per Cole v Turner  6 Mod Rep 149, the “least touching in anger is a battery.” Whilst hostility is usually accompanied by a lack of consent on the part of the victim, non-consent will not always indicate hostile intent, F v West Berkshire Health Authority  2 AC 1.
Not to be confused with the everyday meaning of assault (as in attack), assault in criminal and tort law refers to situations in which an individual “causes another person to apprehend the infliction of immediate, unlawful force on his person”, as per Collins v Wilcock  1 WLR 1172. It often goes hand-in-hand with battery.
- Assault does not solely involve physical indications of violence – it is now the case that words and threats can constitute assault, as long as they fulfil the relevant criteria. Since assault is based around communication, even silence can constitute an assault. The issues of both words as assault and silence as assault appear in R v Ireland  AC 147.
- Intention is a necessary component of assault. Thus, somebody who unwittingly acts in a way which causes another to apprehend an attack will not be liable – else someone walking down the street towards a baseball game holding a bat might find themselves in significant trouble.
- The fear of the victim must be reasonable. This reasonableness will be judged based on the facts which are available to the victim at the time of the assault, rather than the objective reality of the situation. This principle can be seen at work in R v St George  9 C&P 483.
It is a requirement of assault that the apprehended danger be of an immediate nature, Mbasogo v Logo Ltd (No. 1)  EWHC 2034. Since assault is a matter of what the victim believes can happen in the immediate future, a threat the victim knows the defendant cannot carry out will not constitute assault, Thomas v National Union of Mineworkers  Ch 20.
Defences to Assault and Battery
- Those with lawful authority will be protected from being held liable of either assault or battery. Thus, under the Police and Criminal Evidence Act 1984 the police can use reasonable force in order to arrest somebody (amongst other activities). Similarly, medical professionals can use reasonable force within certain situations specified by the Mental Health Act 1983.
It is important to note that people with lawful authority do not have the authority to do as they will – they still have to act reasonably. This can be seen in Collins v Wilcock  3 All ER 374.
- As can be seen in Collins, an individual can use reasonable force in self-defence. The force must be proportionate to the threat – since the purpose of the force is to repel to threat, it must be no more substantive than is necessary to do that, Revill v Newbury  2 WLR 239.
- Parents still have a right to use physical force to chastise a child. This right has important limits, however. The level of force inflicted must be proportional to the child’s behaviour (and has, in any case, an upper limit), and if the child does not understand the purpose of the punishment, the defence will fail, A v UK  2 FLR 959.
- If interference with another (i.e. battery) will protect them from a greater evil, or is otherwise necessary, then this will form a valid defence against battery. This is the essence of the ‘pushing someone from the path of a car’ discussed in F v West Berkshire Health Authority above.
As with other torts, consent and contributory negligence form an absolute and partial defence respectively, to the torts of assault and battery.
False imprisonment is restraint without lawful authorisation. As long as the circumstances of false imprisonment exist, the victim does not need to even be aware that they are being falsely imprisoned before a case can be brought. This can be seen in Murray v Ministry of Defence  1 WLR 692.
The key element of false imprisonment is that it must involve a total loss of freedom – it will not arise in situations where the victim is merely prevented from proceeding in a particular direction. This can be seen in Bird v Jones  7 QB 742.
Defences to False Imprisonment:
- If the claimant is being detained on the basis that they need to meet a reasonable condition, then this will form a defence to a claim of false imprisonment. This can be seen in Robinson v Balmain New Ferry Co. Ltd  AC 295.
Assuming the surrounding circumstances are reasonable, a claimant who has to wait a reasonable period of time for ‘release’ will not be considered as being falsely imprisoned. This can be seen in Herd v Weardale Steel, Coal and Coke Co Ltd.  AC 67.
- Lawful Authority is a defence. The police have a reasonable right to restrain individuals in particular circumstances. However, if these circumstances are not in place, then cases can be brought against them for false imprisonment.
Mental health professionals also have a similar ability. It is also possible to lawfully detain an individual if they have a particular contagious disease, as per the Public Health (Control of Disease) Act 1984.
- As noted above, individuals can explicitly or impliedly consent to temporary imprisonment of some kind, as in Robinson. It is also feasible that an individual might contribute to their own detention – someone who pretends to shoplift and is then kept for longer than necessary by a security guard, for example, will reasonably be regarded as having contributed to the situation.
Wilkinson v Downton and Indirect Trespass
Although largely subsumed by the torts of negligence and harassment, the case of Wilkinson v Downton  2 QB 57 provides an action based on the infliction of indirect harm on another.This is essentially the tort of communicating information designed and intended to harm the well-being of an individual.
The elements of liability were more recently laid out in Wong v Parkside NHS Trust  EWCA Civ 1721. The court identified three elements of the tort – actual harm in the form of physical or psychiatric injury, there must be intention, and the conduct must be of such a degree and such a nature that it was intended to cause harm. It was this third ground that Wong failed to meet.
It has only been successfully employed twice in Janvier v Sweeney  2 KB 216 and Khorasandjian v Bush  QB 727. Nevertheless, Wilkinson remains good law, despite its function being overtaken by legislation.
Thanks to the Harassment Act 1997, the tort of harassment now has a statutory definition. Its three elements are mentioned in s.1 of the act: “a course of conduct that the defendant knows or ought to know amounts to harassment of another.”
- Course of Conduct - As per s.7(3), this refers to conduct on two or more occasions – so one off instances are not covered. Conduct includes speech, as per s.7(4).
- That Amounts to Harassment - As per s.7(2) harassment is that which causes alarm or distress in the victim. Notably, this is subjective on the part of the victim.
The Defendant Knows (Or Ought to Know) That It Amounts to Harassment - Examples include a campaign of threats against the employees and business partners of an medical animal research laboratory, in Daiichi v Stop Huntingdon Animal Cruelty  1 WLR 1503, workplace bullying in Majrowski v Guy’s and St. Thomas’s NHS Trust  2 WLR 125 (which recognised vicarious liability for the tort) and aggressively intrusive police questioning, in KD v Chief Constable of Hampshire  EWHC 2550.
Trespass to Land
Trespass to land is the unjustified interference with the possession of land.There are four elements of the tort which need clarification: there must be direct interference, and that interference must be voluntary, but there is no need for awareness that trespassing is occurring, and there is no need for harm (it is actionable per se).
There must essentially be some purposiveness to the interference with the land. This interference needn’t be particularly egregious. This can be seen in Gregory v Piper  9 B & C 591.
The interference must be voluntary, as per Stone v Smith  Style 65.
Awareness is not Necessary
Trespass caused by a mistake is still actionable. Similarly, someone who is mistaken as to their permission to enter onto land will still be committing a tort, as per Conway v George Wimpey & Co Ltd  2 KB 266.
No Harm Needed
Trespass to land, much like trespass to the person, is a matter of protecting rights, rather than preventing harm. Because of this, no harm need be shown before a trespass is actionable.
Further Trespass Rules
There are three particulars of trespass which bear mentioning.
- Firstly, ‘land’ should be given its proper property law definition – it includes the air above a piece of property and the soil below. There is an upper and lower height limit to this cube, however, as seen in Bernstein v Skyviews and General Ltd  QB 479.
- Only those who have exclusive possession of a piece of land can sue for trespass – this means that tenants, guests, visitors or lodgers cannot.
- The rule of trespass ab initio states that where a defendant abuses their permission to enter a piece of land, then they will be treated as having trespassed from the moment they entered the land, as per The Six Carpenters Case  EngR 452.
Trespass to Goods
This is an action in tort to deal with unwarranted inference with personal property – the tort of trespass to goods. This is covered in the Torts (Interference with Goods) Act 1977. The elements are largely the same as for trespass to land – direct interference with goods belonging to another.
As with land, the tort is of direct interference. This essentially means an object must be physically affected – so moved or damaged. In contrast, unauthorised observation is not trespass, Malone v Metropolitan Police Commissioner  Ch 344.
As long as the defendant knows they are interfering with the object, then the fact that they did not know they were committing trespass will not form a defence.
This can be seen in Wilson v Lombank  1 WLR 1294. However, if the defendant mistakenly interferes with an object but doesn’t know that they are doing so, then this will form a defence, as in National Coal Board v JE Evans & Co (Cardiff) Ltd  2 KB 861.
It can therefore be seen that liability is strict when the trespassed object is known to the defendant, but fault based (like negligence) when they have no knowledge of it.
Harm is Not Necessary (Most of the Time)
When the interference is deliberate – then trespass is actionable per se – without damage (as per Transco Plc v United Utilities Water Plc  EWHC 2784.) In contrast, if the interference is done unknowingly (so mistakenly hitting a hidden cable) then damage is necessary (as per Everitt v Martin  NZLR 298.)
Trespass is a matter of interfering with possession, rather than ownership. It is thus possible for a possessor who is not an owner to bring an action for trespass, such as in the case of trustees, executors or administrators.
However, as per s.8 of the 1977 Act, a defendant can argue a defence if jus tertii (third party rights) – essentially, that a person other than the claimant has a greater right to the property, and thus that they are the proper claimant of the case. If this is the case, that third party will become a joint-claimant. This will occur rarely, however, since claimants are obliged to give full details of the nature of their ownership before the claim reaches court.
Defences to Trespass to Land and Goods
Under the Police and Criminal Evidence Act 1984, those with lawful authority can interfere with property and land within certain parameters – to execute a warrant, for example.
Consent and contributory negligence are available for trespass to land. Consent can operate within the trespass of goods, but as per s.11 of the Act, contributory negligence is not a defence where interference goods is intentional.
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